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| Police sins of surveillance go far beyond the Lawrences and must be exposed | Police sins of surveillance go far beyond the Lawrences and must be exposed |
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| The announcement last week that there will be a public inquiry into undercover policing would have been unthinkable until very recently. The orthodox view is that in order to preserve the efficacy of secret surveillance, it must be kept hidden from public scrutiny at all times. But the home secretary has rightly recognised that in many ways that orthodoxy is now unsustainable. | The announcement last week that there will be a public inquiry into undercover policing would have been unthinkable until very recently. The orthodox view is that in order to preserve the efficacy of secret surveillance, it must be kept hidden from public scrutiny at all times. But the home secretary has rightly recognised that in many ways that orthodoxy is now unsustainable. |
| In numerous cases – including the most infamous police investigation of recent times, the Stephen Lawrence murder – there appears to have been improper use of undercover officers, lacking proper oversight. The system is not working and needs fundamental correction. A judge-led public inquiry is the beginning of that process. | In numerous cases – including the most infamous police investigation of recent times, the Stephen Lawrence murder – there appears to have been improper use of undercover officers, lacking proper oversight. The system is not working and needs fundamental correction. A judge-led public inquiry is the beginning of that process. |
| What is striking is that we have reached this point not so much through the legal process, but despite it. What we have learned is largely a result of the victims of undercover policing and a police whistleblower being willing to give their accounts publicly and journalists giving them the platform to do so. | What is striking is that we have reached this point not so much through the legal process, but despite it. What we have learned is largely a result of the victims of undercover policing and a police whistleblower being willing to give their accounts publicly and journalists giving them the platform to do so. |
| It was through publishing their stories, rather than the cases going through the courts, that we discovered details of the activity that many police officers probably expected would remain hidden for ever. That, as well as the inclusive approach of the Lawrence family who always emphasised that their concerns went beyond the facts of their own case, is how the call to hold a public inquiry eventually became irresistible. | It was through publishing their stories, rather than the cases going through the courts, that we discovered details of the activity that many police officers probably expected would remain hidden for ever. That, as well as the inclusive approach of the Lawrence family who always emphasised that their concerns went beyond the facts of their own case, is how the call to hold a public inquiry eventually became irresistible. |
| The difficulty in using legal processes to disclose undercover police wrongdoing was clear from an early stage. In July 2011, the court of appeal quashed the convictions of 20 environmental campaigners in connection with a protest at Ratcliffe-on-Soar power station. The Crown Prosecution Service should have disclosed, prior to their trial, that an undercover officer named Mark Kennedy was involved. But it was the campaigners themselves who eventually uncovered him. | The difficulty in using legal processes to disclose undercover police wrongdoing was clear from an early stage. In July 2011, the court of appeal quashed the convictions of 20 environmental campaigners in connection with a protest at Ratcliffe-on-Soar power station. The Crown Prosecution Service should have disclosed, prior to their trial, that an undercover officer named Mark Kennedy was involved. But it was the campaigners themselves who eventually uncovered him. |
| The CPS did not contest the appeals but the campaigners felt the information they had been given about Kennedy's true involvement and who had supervised him to spy on them was still inadequate. They asked the court of appeal to require the CPS to explain further. The court declined to do so, not least because the Independent Police Complaints Commission and others were conducting reviews at that time. The court hoped those reviews would provide sufficient answers. The campaigners were less optimistic and, as it turned out, most of their questions remained even after the reviews were complete. | The CPS did not contest the appeals but the campaigners felt the information they had been given about Kennedy's true involvement and who had supervised him to spy on them was still inadequate. They asked the court of appeal to require the CPS to explain further. The court declined to do so, not least because the Independent Police Complaints Commission and others were conducting reviews at that time. The court hoped those reviews would provide sufficient answers. The campaigners were less optimistic and, as it turned out, most of their questions remained even after the reviews were complete. |
| Shortly afterwards, a number of people who had been subjected to undercover police surveillance considered civil legal claims. Some of those seeking legal redress were women who had been in relationships with undercover officers and had children the officers had abandoned. | Shortly afterwards, a number of people who had been subjected to undercover police surveillance considered civil legal claims. Some of those seeking legal redress were women who had been in relationships with undercover officers and had children the officers had abandoned. |
| But their claims faced immediate legal obstacles. In particular, the police asserted that their claims should be heard in the Investigatory Powers Tribunal, a special court that usually sits in secret and for which there is almost no legal aid and no compensation for legal costs. The legal process seemed to make it exceptionally difficult for them to obtain the answers they sought, and the women were only partly successful in resisting their claims going to the IPT. | But their claims faced immediate legal obstacles. In particular, the police asserted that their claims should be heard in the Investigatory Powers Tribunal, a special court that usually sits in secret and for which there is almost no legal aid and no compensation for legal costs. The legal process seemed to make it exceptionally difficult for them to obtain the answers they sought, and the women were only partly successful in resisting their claims going to the IPT. |
| The frustrations of the legal process were also compounded by the rigid operation of a police policy known as NCND ("neither confirm nor deny"). NCND is well recognised by both civil and criminal courts as an important measure to preserve the security of operations. But it is a policy, not a rule. When it is applied too rigidly, it can produce surreal results. For example, many women were told that the police would "neither confirm nor deny" whether the men with whom they had long-term relationships had been undercover officers, even though for many of the women it was already perfectly clear. Even now, the police are still attempting to strike out some of the women's claims based, in part, on the importance of preserving NCND. For many of the women, the legal process seems bizarre. | The frustrations of the legal process were also compounded by the rigid operation of a police policy known as NCND ("neither confirm nor deny"). NCND is well recognised by both civil and criminal courts as an important measure to preserve the security of operations. But it is a policy, not a rule. When it is applied too rigidly, it can produce surreal results. For example, many women were told that the police would "neither confirm nor deny" whether the men with whom they had long-term relationships had been undercover officers, even though for many of the women it was already perfectly clear. Even now, the police are still attempting to strike out some of the women's claims based, in part, on the importance of preserving NCND. For many of the women, the legal process seems bizarre. |
| In another example of NCND, the campaigner John Jordan recently sought to overturn his conviction for assaulting a police officer at a demonstration in 1996. He believed that a man who took part in the demonstration with him was in fact an undercover police officer named Jim Boyling. Boyling had even appeared in court, alongside Jordan, under the assumed name of "Jim Sutton". In trying to appeal against his conviction, Jordan wanted to know what had really happened in his case. But although the CPS agreed not to contest Mr Jordan's appeal, they refused to explain why. | In another example of NCND, the campaigner John Jordan recently sought to overturn his conviction for assaulting a police officer at a demonstration in 1996. He believed that a man who took part in the demonstration with him was in fact an undercover police officer named Jim Boyling. Boyling had even appeared in court, alongside Jordan, under the assumed name of "Jim Sutton". In trying to appeal against his conviction, Jordan wanted to know what had really happened in his case. But although the CPS agreed not to contest Mr Jordan's appeal, they refused to explain why. |
| And while the police confirmed that Boyling had been a police officer, they would "neither confirm nor deny" whether he was an undercover police officer. From Mr Jordan's viewpoint, NCND was almost Python-esque: were they suggesting that Boyling had been pretending to be "Sutton" in his "spare time"? The appeal court is expected to rule soon on whether it has the power to require the CPS or the police to disclose more to Mr Jordan. | And while the police confirmed that Boyling had been a police officer, they would "neither confirm nor deny" whether he was an undercover police officer. From Mr Jordan's viewpoint, NCND was almost Python-esque: were they suggesting that Boyling had been pretending to be "Sutton" in his "spare time"? The appeal court is expected to rule soon on whether it has the power to require the CPS or the police to disclose more to Mr Jordan. |
| In contrast to the lack of information emerging from the legal process, a revealing discussion was going on outside the courts. Journalists at the Observer and the Guardian had been writing about the activities of undercover officers since 2010. | In contrast to the lack of information emerging from the legal process, a revealing discussion was going on outside the courts. Journalists at the Observer and the Guardian had been writing about the activities of undercover officers since 2010. |
| Last summer, the Guardian's Rob Evans and Paul Lewis published a book based on their sources, Undercover: The True Story of Britain's Secret Police, which set out a detailed account of undercover police activity going back several decades. At around the same time, Paul Lewis presented a Dispatches programme that aired allegations by the former undercover officer and whistleblower, Peter Francis. Among his revelations, he described how the Lawrence family had been subjected to undercover surveillance when they were grieving the loss of their son and campaigning for an investigation into his murder. | Last summer, the Guardian's Rob Evans and Paul Lewis published a book based on their sources, Undercover: The True Story of Britain's Secret Police, which set out a detailed account of undercover police activity going back several decades. At around the same time, Paul Lewis presented a Dispatches programme that aired allegations by the former undercover officer and whistleblower, Peter Francis. Among his revelations, he described how the Lawrence family had been subjected to undercover surveillance when they were grieving the loss of their son and campaigning for an investigation into his murder. |
| Within weeks, politicians and police officers at the very highest level were involved and the sequence of events that has led directly to this public inquiry had started. Since 2011, approximately 50 people have had their convictions quashed because of undercover police activity that was not disclosed at their trials. The courts have been unequivocal in their criticism of the failure to disclose the roles of those officers. But it is important to remember that legal, regulatory and political processes initially failed to provide full answers for the victims of undercover policing, including the Lawrence family. | Within weeks, politicians and police officers at the very highest level were involved and the sequence of events that has led directly to this public inquiry had started. Since 2011, approximately 50 people have had their convictions quashed because of undercover police activity that was not disclosed at their trials. The courts have been unequivocal in their criticism of the failure to disclose the roles of those officers. But it is important to remember that legal, regulatory and political processes initially failed to provide full answers for the victims of undercover policing, including the Lawrence family. |
| Hopefully, this new public inquiry will have the opportunity to correct years of failings. But politicians and lawyers should keep in mind how we reached this point. When it comes to calling state misconduct to account, we should not underestimate the value of the fourth estate and its importance to the functioning of our democracy. | Hopefully, this new public inquiry will have the opportunity to correct years of failings. But politicians and lawyers should keep in mind how we reached this point. When it comes to calling state misconduct to account, we should not underestimate the value of the fourth estate and its importance to the functioning of our democracy. |
| @rydermc | @rydermc |
| Matthew Ryder QC is a barrister at Matrix Chambers | Matthew Ryder QC is a barrister at Matrix Chambers |
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